INSIGHT
5762 - #06
War And The Innocent Bystander
Even as the vast
majority of Americans and Canadians fully support the war
on terrorism, there is a vocal minority that protests
against the war. One of the concerns voiced by some of
these opponents is the possibility of innocent civilian
bystanders being killed as a result of the offensive. The
United States government itself constantly clarifies that
its enemy is not the Afghan people but terrorists and
those that harbour terrorism. Indeed, it could be argued
that the Afghan people are themselves victims of the
Taliban conquerors of their homeland. Nonetheless,
the war against terrorism has resulted and will continue
to result in the deaths of civilian Afghan citizens and
others. Protesters point to this reality and thereby
declare the war to be unjust: They ask: even if the goal
is commendable, how can one justify the spilling of
innocent blood in the attempt to stop the terrorists?1 This is a question that needs to be
addressed.
Rabbi J. David Bleich2 writes: "Not only does
one search in vain for a ruling prohibiting military
activity likely to result in the death of civilians, but,
to this writer's knowledge, there exists no discussion in
classical rabbinic sources that takes cognizance of the
likelihood of causing civilian casualties in the course
of hostilities legitimately undertaken as posing a
halakhic or moral problem."3 Unfortunately, Rabbi Bleich does not give
any explanation as to why the "likelihood of
civilian casualties" does not pose "a halakhic
or moral problem." It may be that this is an assumed
cost of war and the allowance for war inherently allows
the loss of civilians. Minchat Chinuch, Mitzvah 425
states that in regard to the commandments that obligate
the Jewish nation to wage war, there is no
argument for exemption because of pikuach nefesh,
concern for life. While concern for life generally allows
(even demands) one to transgress a commandment, this
dispensation does not apply to war commandments. Minchat
Chinuch's argument is simple: war by definition is
dangerous. It may be that war has its own rules. When the
Torah allows or demands the waging of war, it could be
argued that the Torah is, by definition, declaring a
recognition that different moral guidelines have to apply
than those that exist in peace situations.4 Since as U.S. Secretary of Defence Rumsfeld
stated, the loss of civilians is an inevitable
consequence of war,5 the halachic
permission to wage war may itself recognize and sanction
this inevitable loss of civilian lives. An allowance for
war by definition removes culpability for these deaths.
Essentially, the moral question changes in the context of
war. There is still a moral question that needs to be
addressed but, with war, it is transformed. Our question
is not whether the loss of civilian life or how much loss
of civilian life is acceptable in the pursuit of a
terrorist. Our question is whether war is an appropriate
response to this terrorist incursion. If it is, by
definition, it means an acceptance of loss of civilian
life. Rabbi Bleich clarifies this distinctive nature of
war by comparing a moral call for arms - such as a
defensive war - to the law of the rodef, the
pursuer.6 According to Jewish Law, if
one is threatening another's life, we are commanded to
protect the one threatened even if it demands killing the
pursuer. Rabbi Bleich, however, contends that under the
law of rodef the possibility of harm to a
bystander would limit the possible responses. A rodef
may not be attacked if such action "is likely to
result in casualties among noncombatants."7 The consequence of such a distinction is
major. According to Rabbi Bleich, if the pursuit of a
terrorist is defined as a police action - and thus
carried out under the law of rodef - this action
is significantly limited by the need to minimize
potential harm to civilians. If this pursuit is defined
as an act of justifiable war, however, this action is not
thereby limited.8
Still, why is war unique? Why does war create a shift in
moral axioms? Maharal, Gur Aryeh, Bereishit 34:13 sees
war in the context of the nation. As an individual, one
person may not be responsible for the actions of another
and, therefore, ethically protected from suffering
because of the others actions. However, Maharal
contends that as part of a nation, in war this individual
is subsumed under the group. He/she, thus, halachically
shares the fate of the group, even if he/she is
personally not responsible for the actions of the
perpetrator. This is an example of the shift in moral
axioms that is part of war. But this case may also serve
to help elucidate the nature of this shift. In war, we
see the nation, not the individual. Similarly, in war, it
may be that we assert the value of the broad principle
and not the specific morality of each detailed case. With
a declaration of war against terrorism, a general goal to
eradicate this evil becomes paramount notwithstanding the
cost in lives.9
Rabbi Benjamin Hecht e-mail
Notes
1 If the evil of terrorism is ultimately
defined by the spilling of innocent blood, the question
ironically is: how can one justify the spilling of
innocent blood (in the military offensive) in order to
prevent the spilling of innocent blood (by terrorists)?
2 See Contemporary Halakhic Problems,
Volume 3, Preemptive War in Jewish Law, p. 277.
3 Rabbi Bleich, in this article, is discussing
warfare within the context of Jewish Law, specifically
certain issues involving the Jewish nation's right and/or
obligation to wage war. Within this Insight, we are, for
the purposes of moral investigation, extending aspects of
this discussion to war in general as it may apply to all
nations.The Noachide laws governing war as it applies to
all nations, however, may be different than the laws
governing a Jewish nation at war. Thus, this extension
must be approached with some caution. Yet, it is my
belief that this extension is generally applicable.
Further on the status of warfare under the Noachide Code,
see Rabbi J. David Bleich, Contemporary Halakhic
Problems, Volume 2, Miscellaneous Questions: War and
Non-Jews.
4 Another example of this shift in moral
axioms is the case of the yefat to'ar, the
beautiful woman captured in war. See Devarim 21:10-14.
According to those Torah scholars that allow nations to
initiate hostilities under the Noachide Code, the
exclusion of war casualties from the prohibition of
homicide may be another example of this shift. See,
further, Ntziv, HaEmek Davar, Bereishit 9:5.
5 Even, in this case, with the U.S. intent to
limit such losses.
6 See Sefer HaChinuch, Mitzvot 600 and 601.
7 Notwithstanding Rabbi Bleich's position,
this issue in itself may be worthy of discussion. Yet, in
that the law of rodef is different than the
parameters of war, the point is still made.
8 Of course there must still be an evaluation
of the projected extent of this cost in terms of the
objectives of the war. This evaluation process, it should
be recognized, is also an inherent part of the nature of
war. For example, while danger is an acceptable
consequence of war, great losses or even pyrrhic
victories may not be justifiable. As such, while pikuach
nefesh may not be a factor in evaluating a situation,
the potential for great losses may override a command to
fight if avoidance of this danger would be a normative
battle decision.
9 In comparison, in a non-war situation,
individual life would be the paramount concern.
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